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Europe and the Disaggregation of Cyberspace

‘Cyberspace’ has, for the most part, been one of those terms that are constantly used and yet difficult to define. However, one attribute is commonly held to be unquestionable: its indivisibility. As the argument goes, there is only one cyberspace that transcends state borders and regional specificities, thus bringing the world closer together and challenging traditional power relations. It is also seen as a fundamentally decentralised environment that is impossible to control. However, that is not necessarily what the future holds, and Europe might be teaching the world how to carve out its own distinct piece of cyberspace.

Cyberspace itself has acquired quite a few connotations: it is a source of information, a medium of self-expression, a tool for empowerment of groups that would not otherwise be heard, a work tool and contributor to employment through the growth it generates, a marketplace used for commercial activities of every kind, etc. Moreover, access to it is often even considered to be a new fundamental human right. Hence, cyberspace is global by both design and usage. Given this context, it is difficult to imagine anything but a single universal cyberspace. However, an important distinction needs to be made: between cyberspace, the Internet, and the physical layer. The latter refers to the infrastructure required for the signals to travel and reach the intended destination, the Internet is the medium of communication, while cyberspace is the experience enabled by the Internet. Not all of those elements are likely to change in the same manner (or to change at all). In fact, both the Internet and the physical component underpinning it are likely to remain as they are, i.e. global. But cyberspace as experience is going to change.

Even in the short term, we are going to witness gradual fracturing of cyberspace into national or regional segments: a rather strongly regulated European model, a more laissez-faire American model, a Chinese model, a Russian model and so on. All of them will use the same infrastructural layer and be based on the Internet, but user experience will be different. It is relatively easy to imagine the Chinese model: tight governmental control over accessible content, sophisticated tools to filter online material, and banning of certain services altogether. In other words, this is an outwardly repressive approach to securing a distinct portion of cyberspace. The Russian approach involves less outright restriction but, instead, a tight grip on the producers of content and swamping the local cyberspace with material created under strict government supervision. In effect, outside influences are primarily pushed out. This having been said, if demand for non-native content increases, filtering is a likely future development. The picture could not be more different in the United States, where cyberspace (in terms of both access and content) falls under the First Amendment guaranteeing freedom of expression. This, coupled with the strength of the American technology industry and prevalent distrust of the central government, creates an environment in which any state-led regulation is inherently difficult. As a result, cyberspace there is still, to a large extent, a modern Wild West. The Federal Communications Commission’s attempt to impose net neutrality might be a notable exception but its fate now hinges on court decision (and courts have, in the past, been favourable to Internet service providers).

The European model, meanwhile, is increasingly becoming oriented towards competition (if not trench warfare) between businesses and European central bodies. While the French had set a precedent in 2000, bidding to prevent Nazi memorabilia (banned in France) from being sold at an online auction based in United States, more recently different European Union institutions have made their moves towards customising cyber experience within the bloc. Last year, the Court of Justice of the European Union issued the so-called ‘Right to Be Forgotten’ decision, which allows European citizens to request for certain information concerning them to be removed. This, obviously, raises some difficulties in the online environment. Since the European Court lacks jurisdiction to restrict information available to people in other regions, the most likely outcome is an EU-only application of the decision which, although wrought with difficulties and not impregnable, is going to create a virtual border around the European cyberspace. Then, more recently, the European Commission has taken on Google for alleged abuse of its dominant position and other offences. If this bid is successful, it would force Google to provide its services in Europe differently from how it does so everywhere else in the world. Given the European Commission’s track record of hawkishly protecting competition in the internal market while at the same time issuing regulations on how entire services are to be run, this is likely not to be the last of such investigations. Moreover, the effort to create an integrated EU-wide online market would further contribute to drawing a border around the European cyberspace while simultaneously harmonising internal arrangements, hence carving out a distinct section of cyberspace.

Lawrence Lessig, in his book Code (1999 and 2006), identified code as the law and the constituting element of cyberspace. Indeed, code shapes what cyberspace is, how it is experienced, what is and what is not possible. It is written, almost exclusively, by private actors. These companies are, nevertheless, subjected to ‘terrestrial’ law: primarily the law of the country in which they are registered but also the laws of the crucial markets in which they are operating. The Europeans seem to be currently paving the path for a new type of disaggregation of cyberspace: one based on juridical, legislative, and market pressures rather than on brute repression of the Chinese type: not banning or restricting services but shaping the nature of their provision. That is a novel development for a traditionally global domain such as cyberspace. It is not likely that all national or regional powers will adopt the ‘soft’ European approach to customisation of cyberspace. However, the trend is beginning to emerge: in the future, a singular ‘cyberspace’ will be no more, with detrimental effect on global communications and economy.

Ignas Kalpokas is a PhD candidate at the University of Nottingham. His research interests include political theory, international relations, cyber regulation, and cyber security.